CRI/A/66/79 IN THE HIGH COURT OF LESOTHO
In the Appeal of :
VINCENT PHILLIPS Appellant
Delivered by the Hon. Chief Justice Mr. Justice T.S. Cotran on the 29th day of February,1980
The appellant was convicted by a magistrate at Maseru of an offence contrary to s.3(l) as amended of the Deserted Wives and Children Proclamation (No. 60 of 1959). The magistrate, presumably acting under the provisions of s.308 of Criminal Procedure and Evidence Proclamation, postponed sentence for three years on condition that appellant pays the complainant R15 per month towards maintenance of a child, Refiloe, allegedly fathered by the appellant.
The appeal is against conviction, sentence, and maintenance order. The grounds are
That appellant did not have a fair trial,
That there was no proof beyond reasonable doubt that
appellant was guilty as charged, and
That the appellant was unemployed and could not pay
The appellant is a coloured person aged 24. His father is apparently dead but he has a mother who normally lives in the Republic. He does not appear to have close relatives in this country although a brother was mentioned during the course of the proceedings. A lady called Bernice Qacha who was engaged to his brother was said to be his guardian.
The complainant alleged that the appellant failed to maintain the child. The appellant denies paternity and the only question before the Court was whether the Crown was able to prove, beyond reasonable doubt, that he was the father.
The facts disclose that the complainant was a pupil in St Mary's Convent at Hlotse. Her relationship with the appellant started there sometime in 1973. She was expelled from the Convent. The appellant admitted that the complainant became pregnant by him sometime after this date. On this first occasion there was an abortion. Complainant alleged she became pregnant a second time also by him and the child Refiloe was born.
There is no evidence that the trial was unfair. I have not been told in what way it was unfair.
Now there was overwhelming evidence that after the first pregnancy the appellant and complainant continued to see each other and frequently. He accompanied her to see a doctor in a Morija clinic and took her in his car to a shop in Ladybrand and often visited her home. It is impossible, on these facts, to accept the appellant's contention that he had no access. The complainant and her mother tried every means to make the appellant contribute something but it was all in vain. There was an occasion when the appellant (together with his guardian Bernice) was taken to the office of Mr. Adoro the Assistant District Administrator of Leribe. Mr. Adoro was called and he testified that the appellant admitted paternity in this gathering, was apparently willing to marry the girl, but wanted his mother (who was in a hospital in the Republic) to be present. When everything failed this complaint was lodged.
The magistrate, who saw the complainant and the appellant and heard the evidence, is a better judge of credibility than an appellate tribunal. On the record as it stands the appellant's evidence looks poor. The witness he called to rebut Mr. Adoro's evidence had two previous convictions and the magistrate obviously did not believe him. In my view there was proof beyond reasonable doubt that appellant was the father, and has the means to contribute.
It was the duty of the trial magistrate to conduct an enquiry, cither verbally or by way of affidavit, to enable him to determine fairly the amount, if any, that the appellant ought to pay. The magistrate did not do so and simply arrived at an arbitrary figure. The magistrate should bear in mind that both the appellant and the complainant are under a duty to maintain the child. The appellant said on the date of the trial in February 1979 that he was unemployed but he has a car, or the use of a car, and receives adequate allowances from his family. He also apparently plays football for a major club and may well be in receipt of an income from this source. In any event circumstances may have changed.
The sentence and the maintenance order of R15 per month are set aside. I remit the case to the magistrate to hold an enquiry into the means of both parties and, depending on his findings, to pass an appropriate sentence.
CHIEF JUSTICE 29th February,1980
For Appellant : Mr. Matihare For Respondent: Mr. Mdluli
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